NCGA VOICES STRONG CONCERN DURING WOTUS INTERPRETIVE RULE HEARING IN THE HOUSE

JUNE 2014

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(Posted Fri. Jun 20th, 2014)

Yesterday, National Corn Growers Association First Vice President Chip Bowling testified before the House Agriculture Subcommittee on Conservation, Forestry and Energy at a hearing on the U.S. Environmental Protection Agency’s Interpretive Rule regarding the applicability of Clean Water Act agricultural exemptions. The interpretive rule was released in conjunction with U.S. Environmental Protection Agency and U.S. Army Corps of Engineers’ proposed rule for defining the waters of the United States that fall under EPA’s Clean Water Act jurisdiction.

The Interpretive Rule recently issued by the EPA and the Army Corps of Engineers specifies what farmers must do to qualify for the Clean Water Act’s normal farming exemptions from dredge and fill permitting.

“While the policy may have been intended to be relatively limited in effect and to be of assistance to farmers by making the exemption process more efficient, in practice something very different will happen,” Bowling said. “Even if applied in the most practical and flexible manner possible, the fact remains that we are dealing with the Clean Water Act, a law that desperately needs clarification that can only be done by amendments to the statute by the Congress.

In the case of the Interpretive Rule we see the potential that farmers engaged in normal farming activities will face far greater constraints than they had before to qualify those activities for the Clean Water Act exemptions. Producers will also face far greater federal regulatory liabilities, either through the policy’s implementation by the Agencies in the field, or from citizen enforcement suits against farmers.”

Bowling expressed concern that the Rule will, in effect, require producers to follow NRCS conservation practice standards even though many of the covered activities are long-used, normal farming practices. The current list of covered practices includes many routine farming activities, such as brush management, weed control, fencing and grassed waterways, which must be regularly carried out on farms.

“Will the consequence of the Rule be, either through its interpretation in the field or as a result of legal actions, that farmers must closely follow the relevant NRCS standard anytime they are engaged in one of these activities?” asked Bowling. “If so, this is major cause for concern. Not only is this a permit-like requirement for what should be an exempt activity, the everyday use of these standards is simply impractical.”

Bowling provided clear examples of his concerns and called for action.

“I have outlined are the type of concerns we believe to be serious and important enough to require that this Interpretive Rule be withdrawn. In withdrawing the rule, it is imperative that it be made absolutely clear that this policy was meant to address only those circumstances where a practice was being adopted for conservation purposes to achieve specific water quality goals.”

The hearing, titled “A Review of the Interpretive Rule Regarding the Applicability of Clean Water Act Agricultural Exemptions,” also included testimony from USDA Under Secretary for Natural Resources and Environment Robert Bonnie, American Farm Bureau Federation Senior Director of Regulatory Relations Don Parrish, Izaak Walton League of America Executive Director Scott Kovarovics and producer Andy Fabin on behalf of the National Cattlemen’s Beef Association.